Jones v. Cooprider

1 Blackf. 47, 1819 Ind. LEXIS 9

• Court: Indiana Supreme Court
• Decided: November 9, 1819
• Status: Published

Opinion

Blackford, J.

The granting of the new trial is assigned for error; and, consequently, it becomes our duty to inquire into the legality of the evidence, for the supposed illegal admission of which, the first verdict in this case was set aside. It has frequently been determined, not only in England, but in several of the United States, that where the subscribing witnesses to an obligation are dead, or residents of a foreign country beyond sea, proof of their hand-writing is sufficient to authorize the admission of the obligation in evidence. But whether such testimony can be received where the witnesses reside in one of our sister states, is a question of some difficulty. The counsel for the defendant in error contends, that the United States form one single government, and that as the witnesses are residents thereof, it should appear that due diligence had been used to procure their personal attendance, or at least, that their deposi{jons should have been taken by means of a dedimus; and there is much plausibility in this kind of reasoning. It is very certain that the several states are closely connected together by a political bond of union, and form one great confederate republie; hut it must be recollected, at the same time, that these states are entirely independent of each other, except as to the powers delegated by the constitution of the United States to the general government. The laws of one state have no force in any other. The Courts of one state have no jurisdiction in any other. We have no process to compel the attendance of witnesses from Louisiana, nor can we require any officer of that state to take their depositions. Hence, it may be fairly and conclusively inferred, that witnesses residing in one state are as much beyond the jurisdiction of the Courts of any other state, as- if they were residents of any European nation. We are therefore of opinion, that the Circuit Court acted correctly, in admitting evidence of the hand-writing of the subscribing witnesses in this case, and consequently committed an error, in after-wards granting a new trial, on account of their having admitted such testimony

(1).

Kelson, for the plaintiff. Thomasson, for the defendant.

Per Curiam.

The judgment upon the second verdict is reversed, and the proceedings are set aside up to the judgment upon the first verdict, with costs.

The rule is, if there be one or more subscribing witnesses to an instrument, one of them, at least, must be called, or the absence of all accounted for. The attesting witness is presumed to know all the facts attending the execution ; the parties have agreed to rest on his testimony : therefore, if possible, he must be produced. 1 Stark. Ev. 330, 331. Even proof of an obligor’s admission of the execution of a deed, has been held an insufficient excuse for not calling the witness. Abbot v. Plumbe, Doug. 216. — Per Lawrence, J., in Barnes v. Trompowsky, 7 T. R. 261, and in Cunliffe v. Sefton, 2 East, 183. — Johnson v. Mason, 1 Esp. Rep. 89. — Call v. Dunning, 4 East, 63, and note 1. — The King v. Harringworth, 4 Maule and Selw. 350. — Fox et al. v. Reil et al. 3 Johns. Rep. 477.

Where the witness to an instrument is dead, or, as in the text, is abroad and beyond the process of the Court, his absence is sufficiently accounted for to let in proof of his hand-writing, the next best evidence. Prince v. Blackburn, 2 East, 250. — Coghlan v. Williamson, Doug. 93. — Barnes v. Trompowsky, supra. — Adam, et ux. v. Kers, 1 Bos. and Pull. 360. — Sluby v. Champlin, 4 Johns. Rep. 461, — Sentney v. Overton, 4 Bibb, 445. — Bowman v. Bartlet, 3 Marsh. Ky. Rep. 86, 91. Whether he be domiciled abroad or not. Prince v. Blackburn, supra. — Sluby v. Champlin, supra. — 1 Stark. Ev. 338. So if he has become blind, Wood v. Drury, Ld. Raym. 734; insane, 12 Vin. Abr. T. b. 48. pl. 12 — Currie v. Child, 3 Campb. Rep. 283; interested, Swire v. Bell et al. 5 T. R. 371 — Buckley v. Smith, 2 Esp. Rep. 697; incompetent, by being convicted of a crime. Jones v. Mason, 2 Strange, 833. So where, after diligent search, he cannot be found. For the search necessary, vide Anon. 12 Mod 607. — Coghlan v. Williamson, supra. — Cunliffe v. Sefton, supra. — Crosby v. Percy, 1 Taunt. 364. — Ward v. Wells, ibid. 461.— Wardell v. Fermor, 2 Campb. Rep. 282. — Parker v. Hoskins, 2 Taunt. 223. — Burt v. Walker, 4 Barnew. and Ald. 697. — Cook et al. v. Woodrow, 5 Cranch, 13. — Spring v. S. C. Ins. Co. 8 Wheat. 268. — Mills et al. v. Twist, 8 Johns. Rep. 121.

In case of several attesting witnesses, one only need be called; or if none of them can be bad, proof of the hand-writing, of one will do. Adam v. Kers, supra Jackson v. Burton, 11 Johns. Rep. 64. — 1 Phill. Ev. 364, note c. — 3 Stark. Ev. 341.

Qucere, Whether proof of the signature of the witness, .when admissible, is prima fade sufficient, without that of the party, or his admission, or other evidence of identity; and whether the rule is the same, in this respect, as to deeds and other instruments. Vide Wallis v. Delancy, 7 T. R. 262, note c. — Adam v. Kers, supra. — Nelson v. Whittall, 1 Barnew. and Ald. 19. — Middleton v. Sandford, 4 Campb. Rep. 34. — Hill v. Unett, 3 Mad. 370. — 1 Phill. Ev. 362. — 2 Phill. Ev. 6, 7. — Chitt. on Bills, Am. Ed. of 1821, 486, 487. — 1 Stark. Ev. 340, 341. — 2 Stark. Ev. 228.

If no information of the witness, nor of his handwriting, can, after diligent inquiry, be obtained, Cunliffe v. Sefton, supra — Jones’ Adm’rs v. Blounts’ Ex’rs, 1 Hayw 238 — Clark v. Sanderson, 3 Binn. 192; if he were incompetent at the time of attestation, Swire v. Bell et al. supra; or if; on being called, he deny having seen the instrument executed, Talbot v. Hodson, 7 Taunt. 251; the writing stands, as if his name were not on it, and other evidence may be admitted. 1 Phill. Ev. 363, 364. — 1 Stark. Ev. 342, 343.

When an instrument, executed by the adverse party, and in his possession, is produced on notice, the party calling for the writing, is bound to prove it by the subscribing witness, as in ordinary cases; unless the party producing the instrument, claim under it a beneficial interest. Pearce v. Hooper, 3 Taunt. 60. The old doctrine was otherwise. Rex v. Middlezoy, 2 T. R. 41. — Bowles v. Langworthy, 5 T. R. 366. These two last cases were overruled by Gordon v. Secretan, 8 East, 548, followed by Wetherston v. Edgington, 2 Campb. Rep. 94, which required proof of the execution, as in every other case. Pearce v. Hooper, supra, restricted the rule in the manner stated above, which seems now the settled law. Knight v. Martin, 1 Gow’s Rep. 26 and note. — Orr v. Morice, 3 Brod. and Bingh. 139. — Jackson v. Kingsley, 17 Johns. Rep. 158. If the party refuse to produce the instrument on notice, parol evidence of the contents is admissible, without calling the subscribing witness. Cooke v. Tanswell, 8 Taunt. 450.